Uttam Chand vs State and Others

Dhiraj Singh Thakur, J.â€"In the present petition filed by the petitioner in 2011, selection and appointment of private respondent No. 5, made by

virtue of order dt. 24.7.2004, as Education Volunteer in EGS Centre, Duenda, under SSA Scheme, Zone Bani, district Kathua, has been

challenged. The challenge rests on the ground that the petitioner being more meritorious than the respondent No. 5, was entitled for appointment as

Education Volunteer.

Objections have been filed by the respondents. Respondents 1 to 4 have taken a stand that the present petition deserves to be dismissed on the

ground of delay and laches.

Respondent No. 5, in its objections has stated that the petitioner had neither applied for the post in question nor had participated in the process

of selection initiated in the year 2004.

Heard learned counsel for the parties.

With a view to overcome the difficulty of delay of laches in filing the present petition, counsel for the petitioner urged that number of

representations were filed by the petitioner agitating the selection and appointment of private respondent No. 5, which were never properly

responded by the official respondents. Copies of these representations dt. 8.3.2010 and 8.7.2010, have been placed on record.

The mere fact that the petitioner had filed representations, that too, as late as in the year 2010, would not amount to justifying the silence of the

petitioner for as many as six years from the date, the cause of action had accrued to him.

How the courts have dealt with the issue of delay and laches in writ proceedings can briefly be noticed as under:-

In Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, , the Apex court held that there was no inviolable rule

whenever there was delay, the court must necessarily refuse to entertain the petition under Article 226. The question was one of discretion to be

exercised in the facts and circumstances of each case. Delay and laches was not a rule of law but a rule of practice based on sound and proper

exercise of discretion.

Another principle that was laid down by the Apex Court and followed in R and M Trust Vs. Koramangala Residents Vigilance Group and

Others, , was that delay would be an important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, if the same

had resulted in creation of third party interest.

The third principle as regards delay and laches can be noticed in the judgment of the Apex Court in the case of State of Madhya Pradesh Vs.

Bhailal Bhai and Others, , which stated that the maximum period fixed by the legislature for grant of relief in a civil suit would ordinarily be

reasonable standard for fixing the period to determine delay in seeking remedy under Article 226. The Apex court in the said case observed as

under:

The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However; the maximum period fixed by the

legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which

delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of

limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to

hold that it is unreasonable.

However, it does not lay down, as a matter of principle, that in every case, where a petition is filed within the period, which is otherwise

prescribed for filing a civil suit for a particular relief, the court must, as a matter of rule, accept the petition and exercise jurisdiction under Article

Reference in this regard can be made to the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , where

even five months delay was considered to be fatal. The Apex Court in the said judgment observed as follows:

Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of respondent 4 and during this

period, Respondent 4 incurred considerable expenditure aggregating to about Rs. 1,25,0000 in making arrangements for putting up the restaurant

and the snack bars and in fact set up the snack bars and started running the same. It would now be most iniquitous to set aside the contracts of

Respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after

the acceptance of the tender of Respondent 4 but the appellant allowed a period of over five months to elapse during which Respondent 4 altered

their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of

our discretion under Article 226 of the Constitution.

Similar was the view taken by the Apex Court in Ashok Kumar Mishra and Others Vs. Collector, Raipur and Others, .

In the present case, the cause of action, if any, had accrued to the petitioner in the year 2004, when the respondent No. 5, was appointed as

Education Volunteer. He for the first time, approached the official respondents by filing representation in March, 2010, i.e. after six years of

selection and appointment of the aforementioned private respondent and there is no explanation in that regard.

The official respondents have stated that the services of private respondent No. 5, has since been converted as ReT teacher from Education

Volunteer pursuant to the orders dt. 27.11.2008, and is presently working as such in Primary School, Duenda.

Under the said circumstances, it would be highly inequitable to allow the petitioner to challenge the selection and appointment of private

respondent No. 5, at this belated stage when he had chosen to remain silent for all these years. Following the ratio of the judgments

aforementioned, the present petition is held to be barred by delay and laches and is, accordingly, dismissed.